Intellectual property law is good. Excess in intellectual property law is not. This blog is about excess in Canadian and international copyright law, trademarks law and patent law. I practice IP law with Macera & Jarzyna, LLP in Ottawa, Canada. I've also been in government and academe. My views are purely personal and don't necessarily reflect those of my firm or any of its clients. Nothing on this blog should be taken as legal advice.

Friday, May 22, 2015

ACCESS COPYRIGHT’S Provincial Tariff – Less Than 1% Of What Was Asked For And Apparently Not Enough To Pay The Bill

Eleven years ago, Access Copyright filed a tariff
seeking $15 for each full time equivalent employee from provincial and territorial governments.

Its ship has now come home. But spoiler alert: the ending was not a happy
one for Access Copyright. The ship was not full of riches as expected. Instead,
the Copyright Board has awarded only 11.56¢ - that's indeed ¢ and not $ and not a typo - per employee per year or 0.0077,
i.e. less than 1%, of what Access Copyright asked for. That is for the period of
2005-2009. The rate goes up to 49.71¢ per employee for 2010-2014. But that is
in turn only about 2% of the $24 per employee that Access Copyright asked for.

In the Board’s words:

·The Board took several factors
into consideration in determining those rates. First, the evidence shows that a
significant proportion of government employees (about 60 per cent) do not
engage in any form of copying.

·Second, among the works that
are copied by employees of provincial and territorial governments, some are not
part of Access Copyright’s repertoire. Thus, such copies are not compensable
under the tariff.

·Third,
a large portion of copying by government employees does not generate
remuneration because the Board found that this copying was permitted under the
fair-dealing provisions of the Copyright
Act. The Board
reached this decision by giving fair dealing, a user’s right, a large and
liberal interpretation, in accordance with the Supreme Court of Canada’s
decisions.

(highlight and emphasis added)

According to the Board:

Mr.
Gilles McDougall, Secretary General of the Board, said that “The amounts of
royalties that are likely to be generated by the Tariff are approximately
$14,000 per year for the 2005-2009 period and $60,000 per year for 2010-2014.”
These amounts do not account for the Governments of Ontario and the Northwest
Territories who withdrew from the proceeding.

Assuming that this is accurate, the tariff will –
over its life of ten years – generate only about $370,000 (five years @ $14,000 p.a. and 5 years @ $60,000 p.a.). This is likely only a small fraction of the legal costs and disbursements incurred by Access Copyright in
pursuing this tariff.

Another
number that is bound to loom large in this proceeding is the amount which the
Government of Ontario agreed to when it settled with Access Copyright. According
to the Board:

On March 1, 2011, after it
concluded a licence with Access, the Government of Ontario withdrew from the
proceedings. (para
4)

The Board states
regarding Ontario that:

The licence provided for a rate
of $7.50 per FTE for 2010. For subsequent years, the rates increase yearly
according to the Consumer Price Index. (para 33)

Questions may now be asked in Ontario and other
governments at every level.

There can be little doubt that there will be
collective consternation on this lovely May weekend and much cacophonous kvetching
to come. It’s frankly rather difficult to see how Access Copyright can spin
this event into a victory. I and no doubt others will have much more to say
about this decision and its possible impact – which could be immense. Meanwhile, read all about it from the Board
itself, including the 179 page decision, here.

I have other interesting material about the Board
in the works, and all eyes now eagerly await a puff of white smoke announcing
the appointment of a new Chair of the Copyright Board, since the post has been vacant
for more than a year. But meanwhile,
have a nice weekend and curl up with the decision, as I hope to do.

1 comment:

Comment #1: Will this be decision be appealed? Access has almost nothing to lose in this instance.

Comment #2: I am pondering the implications on this in the post-secondary example. Have any univerities signed on to the "discount rate" offered by Access? Given this decision, that "discount rate" does not seem like much of a discount at all...